Prosecutor
Misconduct In Two Recent High-Profile Cases:Why
It Happens, and How We Can Better Prevent It

by Elaine Cassell

February 12, 2004

Federal prosecutorial misconduct has turned two recent high
profile
cases -- one involving allegations of murder, the other involving
allegations of a terrorist conspiracy -- upside down.

In each
case, the jury came back with a conviction, or convictions. But in one
case, the jury saw evidence it wasn't supposed to see -- because,
according to the judge, the prosecutor slipped it into the evidence
box. And in the other case, the jury was not shown evidence it was
supposed to see -- because the prosecutors never turned it over. Yet in
neither case has any prosecutor who was to blame been fired.

Obviously, actions like these severely undermine defendants'
rights.
They also shake public confidence in our criminal justice system. And
they mire that system in costly retrials that never would have had to
take place if prosecutors had shown the jury the evidence it was meant
to see -- and only that evidence -- in the first place.

This
misconduct raises an important question: How can we prevent it from
happening the future? I will argue that prosecutors should be able to
be penalized by the bar of any state in which they practice -- and that
the Department of Justice's Office of Professional Responsibility
should be reformed to come down harder on cases of blatant misconduct,
such as these.

Prosecutorial Misconduct In Virginia Federal Court

In
July 2003, a jury convicted Jay Lentz was of kidnapping and murdering
his wife and recommended that he spend the rest of his life in prison.
But after the verdict, the judge -- U.S. District Judge Gerald Lee --
set aside the conviction on the kidnapping charge, finding insufficient
evidence to support it.

Then, just two weeks ago, Judge Lee
ordered a new trial on the murder charge. Why? Because shocking
evidence of prosecutorial misconduct had surfaced.

Jurors had
reported that evidence that the court had ruled inadmissible -- a
calendar allegedly obtained from the possessions of the deceased--had
made its way into the jury room anyway. There, they told the judge, it
had been "very influential."

After a hearing, Judge Lee
concluded that the chief prosecutor in the case, Steven D. Mellin, had
put the calendar in the evidence box that had gone to the jury. He also
made plain that he believed Mellin's misconduct was intentional, or at
least reckless -- not merely an innocent mistake.

Rather than
offering abashed apologies, the prosecutors insisted there was no proof
of prosecutorial misconduct. (Earlier, they had insisted that the judge
had had no authority to investigate them in the first place.) Clearly,
the prosecutors though they were above the law. Fortunately, Judge Lee
held otherwise.

Why would Mellin have done
that? Recent reports give a possible reason. Unbeknownst to the defense
or the court, he was intensely personally involved in the case. Indeed,
he had asked to prosecute it. Maybe that involvement made him step over
the line. Or, maybe he did nothing wrong at all, and Judge Lee just
doesn't "like him." That is what Mellin says. He says Lee gave him
"trouble" from the inception of the case.

But the point is
this: Mellin plainly thought that he, not Judge Lee, should control the
case and the courtroom. Indeed, courtroom interchanges between the two
were characterized by Mellin "talking back" to the Judge in a way that
no defense attorney could ever get away with.

Mellin is said to
have asked the Department of Justice's Office of Professional
Responsibility (OPR) to investigate him -- apparently hoping that it
will clear him. But as I will explain below, even if Mellin were
clearer by OPR, that would still be no guarantee he was innocent of
wrongdoing.

Prosecutorial Misconduct In Detroit Federal Court

Last year, the well-known case involving an alleged Al Qaeda
cell
operating out of Detroit, Michigan went to trial. The prosecution's
star witness was a jailhouse snitch. Defense attorneys claimed the
witness had concocted a story about hearing defendants talk about their
terrorist activity, in order to better his own position with respect to
charges against him involving document fraud.

As is the norm
now in "terrorism" trials, U.S. District Judge Gerald Rosen imposed a
gag order on all attorneys--including prosecutors. As I discussed in an
earlier column,
Attorney General John Ashcroft twice violated that order by going
public--during the trial--with statements designed to bolster the
credibility of certain government witnesses.

At the end of
trial, some defendants were found guilty, and some were acquitted. But
the guilty verdicts were soon put into question. It emerged that
prosecutors had failed to turn over a crucial piece of exculpatory
evidence to the defense.

The evidence was a letter from a
jailmate of the star witness, the snitch. The man said the snitch had
been bragging that he was lying in order to better his position with
the government. In other words, the inmate specifically
corroborated the defense's theory that the witness was making up
his story up to try to get out of his own legal troubles.

Why did the prosecutors not turn the letter over -- as they
were obligated to do with any and all exculpatory evidence, under Brady
v. Maryland?
They said they thought that it wasn't "important" -- given that all the
other evidence, in their view, overwhelmingly pointed to guilt. In
short, they appointed themselves judge and jury over the defendants'
fate.

Furious once again, Judge Rosen has been conducting
hearings and reading briefs on what he should do next. The prosecutors
have been removed from the case, and the Justice Department is said to
be investigating the matter. But the government's position,
unbelievably, continues to be that the verdict -- however tainted by
the withheld evidence -- should stand.

Disciplinary Options for Prosecutors Must Be Strengthened

Unlike
defense attorneys, who must be licensed to practice law everywhere they
practice, federal prosecutors only have to be licensed to practice law
in one state. With a single bar admission, they can practice in any
federal court in the land. The result is that only one state bar can
investigate them -- and often, that state bar has no interest in doing
so, for their alleged misconduct occurs in another state.

In
the Lentz case, the Virginia State Bar reportedly "referred" Mellin to
his licensing state of Texas, for "appropriate" action. But Texas's
standards of practice are famously lax, and pro-prosecution. Moreover,
it is Virginia that has the interest in preventing misconduct here: A
federal judge in a Virginia courthouse has held that Mellin
committed misconduct.

What about federal disciplinary options when prosecutors go
astray? Sadly, they are also weak.

In 2001, the General Accounting Office wrote a
stinging report
on the Justice Department's Office of Professional Responsibility. It
found that OPR rarely held prosecutors accountable for misconduct. And
if OPR turned over a case over to the state that licensed an errant
prosecutor, OPR rarely followed up.

In
response to the report, Congress called on OPR to start doing a better
job of self-policing. As Chairman of the House Judiciary Committee
James Sensenbrenner, Jr. (R-WI) remarked, "The public has a right to
demand the highest ethical standards for its public servants,
particularly those acting on their behalf in the legal system.
Unfortunately, today's report indicates the OPR's procedures fall short
of ensuring accountability for attorneys who commit ethics violations
and ensuring public transparency of the process. Both areas are
critical in maintaining integrity and public confidence in a
self-regulating profession."

Did OPR improve itself? It's hard
to tell. OPR is supposed to file an annual report, but the last one I
found on its website was for 2001. It is filled with
self-congratulatory reports of how well it is doing its job -- but it
is also lacking in specifics. We should all watch closely to see if the
Mellin and the Detroit cell prosecutors -- all of whom plainly
committed misconduct -- are disciplined by OPR or not. If not, that in
itself will be a strong sign that OPR is still not doing its job.

An Option for Judges Lee and Rosen: Contempt of Court for the
Prosecutors

Judge
Lee and Judge Rosen also have an option if they want to discipline the
prosecutors who committed this misconduct -- and in these egregious
cases, they should seriously consider availing themselves of it. The
option is to hold those responsible in contempt of court -- and to
impose upon them fines, or even temporary imprisonment.

Too
harsh? If you think so, consider that these prosecutors were willing to
send people to jail for far longer periods, based on evidence that was,
in one case, tainted, and in the other, grossly incomplete. Would it
really be so unfair for them to have a small taste of the confinement
they might have subjected the defendants to for decades or, in the Lenz
case, for life?

Elaine Cassel
practices law in Virginia and the District of Columbia,
teaches law and psychology, and has a web site on civil liberties. Her
book, The Other War: The War At Home, about civil liberties post
September 11, 2001, will be published in 2004 by Chicago Review Press.